I was out of town last week, but I can't let the story of the Ramsey indictment pass without comment.
The published indictments were met mostly with a yawn from the mainstream media (in fairness, it was a bit like Geraldo opening the Titanic safe: lots of build up and not a lot of substance), but I can't forget the media frenzy that surrounded the Ramsey story when it was "fresh".
I am sure that you are familiar with the bare bones of the facts: JonBenet, a six-year-old beauty queen, was found strangled to death in her parent's basement the day after Christmas. There were no/few signs of an intruder (no footprints in the snow, nothing stolen, etc.) and several clues that were interpreted as incriminating toward the family (a paintbrush belonging to the mother was used in the strangulation, the ransom note was written on stationary from inside the house and included a specific amount of money that only a family member would know about). The case was a media sensation for months until it finally died down. The mother, Patsy Ramsey, died a few years later, still under a cloud of suspicion. The father and brother moved on with their lives.
The indictment charged the parents with child abuse (essentially that they placed their daughter in a dangerous situation), but don't give many clues about the evidence that purportedly backed these charges. Much has been made of the tension between police and prosecutors in the Ramsey case. There is an insinuation that the Ramsey family "got to" the prosecutors, and/or that they received special treatment because of their wealth and position. I haven't seen any of the news outlets discuss how very, painfully easy it is to obtain indictments. As a former prosecutor, the DA's failure to sign/file the indictment indicates that they did not believe that they could meet the necessary standard of proof to bring the matter to trial, not a sinister plot.
In my jurisdiction, a grand jury indictment is obtained when the prosecutor presents evidence, in complete secrecy, to a panel of citizens who meet at a regular time to consider crimes alleged to have occurred within their jurisdiction. (Sometimes, the defendants are already in custody. For example, in my former jurisdiction, an individual could be arrested on a "complaint". This was an affidavit sworn out by a law enforcement office stating the crime alleged and the facts supporting it. On the strength of the complaint, a defendant could be arrested and detained until they can be brought before a judge for a preliminary hearing. At the preliminary hearing, the accused is entitled to counsel. There is some abbreviated testimony about the facts giving rise to the complaint, and the judge determines whether probable cause exists to believe that the crime occurred. If the judge finds that there is probable cause, the accused may be held (or placed on bond conditions) for a certain period of time in which the prosecution seeks indictment . If the judge fails to find probable cause, the Defendant is ordered released. The prosecution may still seek an indictment, but the Defendant is free while they do).). The threshold for finding probable cause is very low, and it is extremely uncommon for the Defendant to be represented at, or even notified of the Grand Jury proceeding. Further stacking the deck in favor of the prosecutor is the fact that the usual rules of evidence do not apply. The most important implication is that hearsay (where someone quotes another person instead of testifying from their own knowledge) any other less-reliable forms of evidence are admissible. The testifying officer doesn't even need to have direct knowledge of the case (in fact, it is common in some places for the prosecutor to intentionally use someone who is not expected to testify at trial in order to prevent the defense from having the opportunity to impeach the witness with contradictory facts (since the understanding of a case may change over time and, after an indictment is issued, a transcript of grand jury proceedings is typically available to the defense).
The Grand Jury can be a useful tool to the prosecutor because they have the authority to subpoena witnesses and evidence which the prosecutor may not otherwise be able to obtain (for example, bank records or a hostile witness). It is also helpful when law enforcement wants to keep an investigation on the down-low, since the Grand Jurors and everyone in the Grand Jury room (including the witnesses!) are sworn to total secrecy. When the Grand Jury is used in this way, it is common for the investigation to dissolve with no indictment because, from its outset, the purpose of the hearing was to gather information.
My personal "take" on the Ramsey indictment (or, rather, the lack thereof), is that the DA was using the Grand Jury process to obtain information, probably the testimony of friends and associates of the Ramseys who might otherwise be less forthcoming. Keep in mind that, while the threshold for obtaining an indictment is very low, the threshold for conviction is extremely high. The Ramseys had money and powerful friends, virtually assuring a strong defense team. Given the national spotlight on the Ramsey case, a loss at trial would have been devastating, and it is understandable to me that the prosecution would proceed with extreme caution.
Monday, October 28, 2013
Wednesday, October 23, 2013
Massachusetts Teacher Murder
Most of the mainstream media is staying vague on the details of the Colleen Ritzer murder, but Heavy.com has jumped in and named a suspect. Admittedly, the Danvers police department didn't make the name very hard to track down.
There is no word yet on cause of death or potential motive. This will be an interesting case to watch as it develops. Authorities (unnamed) were quoted as saying that they would take a "hard look" at charging the boy as an adult. I will have more to say on that topic if it occurs.
There is no word yet on cause of death or potential motive. This will be an interesting case to watch as it develops. Authorities (unnamed) were quoted as saying that they would take a "hard look" at charging the boy as an adult. I will have more to say on that topic if it occurs.
Tuesday, October 22, 2013
Interesting Article
Just a quick link for now:
Washington Monthly has published an incredibly interesting longform article about the case of Jamie Leigh Jones. I didn't follow the case when it was a hot media property, but still found it to be incredibly interesting, particularly in light of the "sounds great on TV/falls apart in court" theme of my earlier posting.
Washington Monthly has published an incredibly interesting longform article about the case of Jamie Leigh Jones. I didn't follow the case when it was a hot media property, but still found it to be incredibly interesting, particularly in light of the "sounds great on TV/falls apart in court" theme of my earlier posting.
TV-ready Murder
I started this blog to discuss high-profile trials. Thinking back over the "biggies" (Casey Anthony, George Zimmerman, O.J. Simpson (original), etc...) I was struck by just how many of those trials were losers for the prosecution. It isn't coincidence.
Trials that capture the public imagination typically have the same factors in common: a relatable victim (child/wronged spouse/everyman/missing white woman) PLUS some hot-button issue that fires up our passions like sex, racism or religion. Excluding celebrity cases (would anyone care about Lindsay Lohan's DWI's if she wasn't Lindsay Lohan?) we care about "big" cases because we can imagine ourselves or someone we care about suffering through a similar outrage and it makes us angry or afraid. We get invested. Unfortunately, the passion that we feel sometimes makes us overlook the difficulty of proving a case. We see that something horrible happened (i.e. a two year old is killed and her body is left in a swamp to rot) and forget the significant evidentiary challenges that prevent all the gory, outrage-fueling details from presentation to the jury. The juries see very different cases than we do. Accordingly, their verdicts often seem incomprehensible.
The Dr. Martin MacNeill case looks poised to follow this pattern exactly.
The allegations in the MacNeill case are that Dr. MacNeill pressured his wife, Michele to undergo elective plastic surgery. Then, when she was recovering, he intentionally overmedicated her, resulting in a drug-overdose that killed her, clearing the way for him to be with his lover, Gypsy Willis, a mistress straight out of central casting.
The twenty-four hour news cycle has already exposed Dr. MacNeill as a cad in the first degree. At the same time, the court has made evidentiary rulings that will prevent the most explosive and prejudicial tidbits from presentation to the jury. Most significantly, the Court will exclude evidence that Dr. MacNeill changed his will to leave property to his mistress, will exclude as hearsay a statement that Mrs. MacNeill allegedly made to her daughter "If anything happens to me, make sure it wasn't your dad", and has reserved a ruling on whether or not his youngest daughter (the first person to find the body) will be allowed to testify at all. This was already an extremely circumstantial case. I predict that Martin MacNeill will walk free- much to the disgust of the news-watching public.
The local Fox affiliate is providing a live stream of the trial: http://fox13now.com/2013/10/17/live-streaming-martin-macneill-murder-trial/
Trials that capture the public imagination typically have the same factors in common: a relatable victim (child/wronged spouse/everyman/missing white woman) PLUS some hot-button issue that fires up our passions like sex, racism or religion. Excluding celebrity cases (would anyone care about Lindsay Lohan's DWI's if she wasn't Lindsay Lohan?) we care about "big" cases because we can imagine ourselves or someone we care about suffering through a similar outrage and it makes us angry or afraid. We get invested. Unfortunately, the passion that we feel sometimes makes us overlook the difficulty of proving a case. We see that something horrible happened (i.e. a two year old is killed and her body is left in a swamp to rot) and forget the significant evidentiary challenges that prevent all the gory, outrage-fueling details from presentation to the jury. The juries see very different cases than we do. Accordingly, their verdicts often seem incomprehensible.
The Dr. Martin MacNeill case looks poised to follow this pattern exactly.
The allegations in the MacNeill case are that Dr. MacNeill pressured his wife, Michele to undergo elective plastic surgery. Then, when she was recovering, he intentionally overmedicated her, resulting in a drug-overdose that killed her, clearing the way for him to be with his lover, Gypsy Willis, a mistress straight out of central casting.
The twenty-four hour news cycle has already exposed Dr. MacNeill as a cad in the first degree. At the same time, the court has made evidentiary rulings that will prevent the most explosive and prejudicial tidbits from presentation to the jury. Most significantly, the Court will exclude evidence that Dr. MacNeill changed his will to leave property to his mistress, will exclude as hearsay a statement that Mrs. MacNeill allegedly made to her daughter "If anything happens to me, make sure it wasn't your dad", and has reserved a ruling on whether or not his youngest daughter (the first person to find the body) will be allowed to testify at all. This was already an extremely circumstantial case. I predict that Martin MacNeill will walk free- much to the disgust of the news-watching public.
The local Fox affiliate is providing a live stream of the trial: http://fox13now.com/2013/10/17/live-streaming-martin-macneill-murder-trial/
Thursday, October 17, 2013
Why would a prosecutor drop the Daisy Coleman Case?
Welcome to my new blog about criminal cases that are trending in the news. Even before an attorney, I was fascinated by the way that high-profile criminal cases play out in the media and blogosphere. As a practicing attorney with five years of experience as a prosecutor, first at the state and then at the federal level, and many more years of experience as a criminal defense attorney, I hope to add insight to the stories that are splashed across the front pages.
This week, the case of Daisy Coleman exploded across the web, ignited by a weekend feature in the Kansas City Star.
Numerous sources have tracked the progress of the case: a brief overview of the contentions of the various parties, the intervention of Anonymous, and the current plans of the state of Montana to reopen and/or review the matter. I am most interested in this case as it relates to the decision of the prosecutor.
Before I go any further, I want to make it absolutely crystal clear that I believe that Daisy Coleman and her friend (who recently voluntarily identified herself to the media as Paige Parkhurst) are victims, whether or not a prosecution ultimately does or should occur. No one should be feeding alcohol to teenagers. No one should take advantage of intoxicated girls. Having sex with someone who lacks the ability to consent is rape. Period. Leaving a drunk girl outside in freezing weather is barbaric. My musing over whether or not the prosecutor's actions were justified or not do not relate in any way to whether or not I think that Daisy was telling the truth or that what happened to her was horrific. I know that, to someone outside the realm of law enforcement, those things might seem impossible to separate. My gut instinct is, of course, if someone does something bad, they should be prosecuted, but my experience as a prosecutor tells me that, sometimes, factors outside of a prosecutor's control make rape prosecutions difficult, if not impossible and that a failed rape prosecution can, in some cases, be far worse than a lack of prosecution.
Insinuations have been made, and speculation is rampant that the Coleman case was dropped because of interference by powerful local families. However, the Nodaway County Prosecutor Robert Rice says that the prosecution was dropped because the victim and her mother refused to cooperate (in some versions of the story, the underage girls invoked the 5th Amendment and refused to make statements- presumably because they were afraid they might be prosecuted for underage drinking).
Whether or not this is true should be easy to determine. Rice claims that the girl/s (it isn't clear to me whether one or both girls allegedly made this invocation) invoked their rights "...right in a deposition under oath." This is significant because depositions are recorded statements. A court reporter, present at the deposition, would have transcribed and attested the statement. Many court reporters also make tape recordings of the interviews so that they may review them later to verify their transcripts.
If, in fact, Daisy and her friend did refuse to make statements under oath, then, in Prosecutor Rice's shoes, I might very well have made the same decision that he did: to drop the rape charges (recall that the endangerment charge was continued for a while after the rape charges were cut loose).
I am assuming that this case would be prosecuted under Montana Statute 45-5-503 "Sexual Intercourse Without Consent." Section 45-5-501 defines, "without consent". The pertinent portion appears to be "mentally defective or incapacitated" (the "under 16" would appear not to qualify where the age difference is less than four years).The prosecutor is required to prove the case beyond a reasonable doubt. He doesn't have just have to prove that Daisy had sex (which I think that everyone accepts as true), or that she was intoxicated (again, I think that this is apparent). He has to prove that Matthew Barnett had sex with Daisy Coleman with the knowledge that she was mentally incapacitated. Keep in mind that "mentally incapacitated" is subjective.
There is some physical evidence in this case. After calming her daughter down with a warm bath (which possibly, inadvertently, destroyed some DNA evidence), Daisy's mother took the girls to the Emergency Room. Per the Kansas City Star story, examination showed that Daisy had an elevated blood alcohol content (backing up her claim that she was intoxicated), and tears around her genitals which suggested recent sexual activity (also, Barnett admitted that sex occurred).
Although those clues are compelling when coupled with the girl's testimony, they aren't that iron clad on their own. Any attorney who has even tried a DWI case will tell you that BAC evidence (and, in particular, how quickly alcohol dissipates from the blood stream) is subject to a wide range of interpretations in the courtroom. The defense might hire an expert to argue that Daisy slammed a bunch of alcohol sometime after sexual intercourse occurred, or that the alcohol didn't absorb into her blood stream (causing impairment) until after the sex. Without Daisy's cooperation, the timeline is very hard to prove.
Also, given that he is contesting the charges, I assume that Barnett is arguing that Daisy was not impaired at the time they had sex or, at least, that he didn't know that she was impaired. Again, without the testimony of the girls (who could have given some idea of how Daisy was acting or when she blacked out), this gets extremely difficult. (NOTE: I am unaware of whether all of the other male witnesses have refused to cooperate and/or what they have said. Obviously, they could provide useful testimony on this issue. If they have something helpful to say, the pendulum swings back toward prosecution).
It doesn't seem unlikely to me that Daisy and her friend might have refused to cooperate (and, possibly, may have misrepresented to their parents whether they wanted to cooperate or not). I do not mean that as a criticism. Rape victims are subjected to incredibly harsh interrogations at incredibly vulnerable times in their lives. Even the people on "their" side (hopefully, the prosecutors) ask prying questions. We need to know the answers to anticipate defenses, but I still feel awful when I have to ask and I can't imagine how bad it feels on the receiving end. Very often victims start to feel that no one believe them, that nothing useful is going to happen anyway and decide to opt out (I can only imagine that feeling intensified given the reports of how Daisy's schoolmates turned against her).
Regardless of what happened in the past, it looks like the victims are cooperating now. Hopefully it is not too late for justice.
EDIT @3:46 PM EST: The Atlantic, attributed this quote to Rice: "They were doing what they wanted to do, and there weren’t any consequences. And it’s reprehensible. But is it criminal? No." I didn't originally pick up on the fact that this was part of the original article (so, I assume, primary attribution comes from their reporter). This quote suggests that Rice's problem was that he didn't perceive the act as rape because it was consensual (as in, "she wanted it" without any reference to her mental capacity). If that is, in fact, his angle, then I disagree with him completely.
EDIT 2 @3:50 PM EST: See also, this quote from the Kansas City Star Article "Rice said charges were dropped for lack of evidence, but he added, declining to go into the specifics, that information brought to his attention regarding what happened "before, during and after" the incident also played a role in his actions."
This week, the case of Daisy Coleman exploded across the web, ignited by a weekend feature in the Kansas City Star.
Numerous sources have tracked the progress of the case: a brief overview of the contentions of the various parties, the intervention of Anonymous, and the current plans of the state of Montana to reopen and/or review the matter. I am most interested in this case as it relates to the decision of the prosecutor.
Before I go any further, I want to make it absolutely crystal clear that I believe that Daisy Coleman and her friend (who recently voluntarily identified herself to the media as Paige Parkhurst) are victims, whether or not a prosecution ultimately does or should occur. No one should be feeding alcohol to teenagers. No one should take advantage of intoxicated girls. Having sex with someone who lacks the ability to consent is rape. Period. Leaving a drunk girl outside in freezing weather is barbaric. My musing over whether or not the prosecutor's actions were justified or not do not relate in any way to whether or not I think that Daisy was telling the truth or that what happened to her was horrific. I know that, to someone outside the realm of law enforcement, those things might seem impossible to separate. My gut instinct is, of course, if someone does something bad, they should be prosecuted, but my experience as a prosecutor tells me that, sometimes, factors outside of a prosecutor's control make rape prosecutions difficult, if not impossible and that a failed rape prosecution can, in some cases, be far worse than a lack of prosecution.
Insinuations have been made, and speculation is rampant that the Coleman case was dropped because of interference by powerful local families. However, the Nodaway County Prosecutor Robert Rice says that the prosecution was dropped because the victim and her mother refused to cooperate (in some versions of the story, the underage girls invoked the 5th Amendment and refused to make statements- presumably because they were afraid they might be prosecuted for underage drinking).
Whether or not this is true should be easy to determine. Rice claims that the girl/s (it isn't clear to me whether one or both girls allegedly made this invocation) invoked their rights "...right in a deposition under oath." This is significant because depositions are recorded statements. A court reporter, present at the deposition, would have transcribed and attested the statement. Many court reporters also make tape recordings of the interviews so that they may review them later to verify their transcripts.
If, in fact, Daisy and her friend did refuse to make statements under oath, then, in Prosecutor Rice's shoes, I might very well have made the same decision that he did: to drop the rape charges (recall that the endangerment charge was continued for a while after the rape charges were cut loose).
I am assuming that this case would be prosecuted under Montana Statute 45-5-503 "Sexual Intercourse Without Consent." Section 45-5-501 defines, "without consent". The pertinent portion appears to be "mentally defective or incapacitated" (the "under 16" would appear not to qualify where the age difference is less than four years).The prosecutor is required to prove the case beyond a reasonable doubt. He doesn't have just have to prove that Daisy had sex (which I think that everyone accepts as true), or that she was intoxicated (again, I think that this is apparent). He has to prove that Matthew Barnett had sex with Daisy Coleman with the knowledge that she was mentally incapacitated. Keep in mind that "mentally incapacitated" is subjective.
There is some physical evidence in this case. After calming her daughter down with a warm bath (which possibly, inadvertently, destroyed some DNA evidence), Daisy's mother took the girls to the Emergency Room. Per the Kansas City Star story, examination showed that Daisy had an elevated blood alcohol content (backing up her claim that she was intoxicated), and tears around her genitals which suggested recent sexual activity (also, Barnett admitted that sex occurred).
Although those clues are compelling when coupled with the girl's testimony, they aren't that iron clad on their own. Any attorney who has even tried a DWI case will tell you that BAC evidence (and, in particular, how quickly alcohol dissipates from the blood stream) is subject to a wide range of interpretations in the courtroom. The defense might hire an expert to argue that Daisy slammed a bunch of alcohol sometime after sexual intercourse occurred, or that the alcohol didn't absorb into her blood stream (causing impairment) until after the sex. Without Daisy's cooperation, the timeline is very hard to prove.
Also, given that he is contesting the charges, I assume that Barnett is arguing that Daisy was not impaired at the time they had sex or, at least, that he didn't know that she was impaired. Again, without the testimony of the girls (who could have given some idea of how Daisy was acting or when she blacked out), this gets extremely difficult. (NOTE: I am unaware of whether all of the other male witnesses have refused to cooperate and/or what they have said. Obviously, they could provide useful testimony on this issue. If they have something helpful to say, the pendulum swings back toward prosecution).
It doesn't seem unlikely to me that Daisy and her friend might have refused to cooperate (and, possibly, may have misrepresented to their parents whether they wanted to cooperate or not). I do not mean that as a criticism. Rape victims are subjected to incredibly harsh interrogations at incredibly vulnerable times in their lives. Even the people on "their" side (hopefully, the prosecutors) ask prying questions. We need to know the answers to anticipate defenses, but I still feel awful when I have to ask and I can't imagine how bad it feels on the receiving end. Very often victims start to feel that no one believe them, that nothing useful is going to happen anyway and decide to opt out (I can only imagine that feeling intensified given the reports of how Daisy's schoolmates turned against her).
Regardless of what happened in the past, it looks like the victims are cooperating now. Hopefully it is not too late for justice.
EDIT @3:46 PM EST: The Atlantic, attributed this quote to Rice: "They were doing what they wanted to do, and there weren’t any consequences. And it’s reprehensible. But is it criminal? No." I didn't originally pick up on the fact that this was part of the original article (so, I assume, primary attribution comes from their reporter). This quote suggests that Rice's problem was that he didn't perceive the act as rape because it was consensual (as in, "she wanted it" without any reference to her mental capacity). If that is, in fact, his angle, then I disagree with him completely.
EDIT 2 @3:50 PM EST: See also, this quote from the Kansas City Star Article "Rice said charges were dropped for lack of evidence, but he added, declining to go into the specifics, that information brought to his attention regarding what happened "before, during and after" the incident also played a role in his actions."
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